Politico’s odd question on same-sex marriage and the Supreme Court

posted at 2:01 pm on March 26, 2013 by Ed Morrissey

As with many in the punditry industry today, my morning reads focused on the Supreme Court’s hearing today on two cases involving the definition of marriage in public policy. There are plenty of articles in which analysts handicap the various potential outcomes, which after the decision on ObamaCare seems like a riskier prospect than ever before. There are also plenty of arguments being made on all sides of the issue, including from me in my column today for The Week.

However, I was particularly struck by the headline from this overview at Politico: “Can gay marriage survive SCOTUS loss?” Besides putting the cart before the horse, the question fundamentally misunderstands how government policy should be created, and it also contradicts the thrust of its own article:

The tide might be turning in favor of gay marriage, but that doesn’t mean the Supreme Court will be swept up in it.For all the toasting in Washington and excitement among gay rights groups about the historic oral arguments this week, there’s still a chance the case could culminate in a loss.

But gay rights activists say this wouldn’t have the impact of Plessy v. Ferguson — the 1896 decision that left “separate but equal” the law of the land until Brown v. Board of Education six decades later.

Instead, they say, they still leave the court in a better position than when they started their legal trek, since public opinion has swung in their favor, supporters have been galvanized, and about 100 prominent Republicans signed a brief publicly endorsing gay marriage.

First, for better or worse, I think the activists have that right. Gay marriage is clearly not going to live or die based on the decision this court hands down in the next few months. Even a total defeat at the Supreme Court would not derail the same-sex marriage movement; it would just force it back into the legislative/referendum process at the state level, which is where it belongs.

That being said, I’m not exactly sanguine about the prospects for judicial restraint here. I have serious doubts about the prospects of the Supreme Court upholding DOMA. It’s too easy a target for the court, an attempt to rewrite the “full faith and credit” clause of Article IV, Section I of the Constitution without an actual amendment to the Constitution. I’m much more concerned about the way that the court treats Proposition 8, not so much because of its content but because a repeal would create even more precedent for judicial activism in the face of direct democracy, as I explain in my column:

However, one case in particular presents a contradictory question to the Supreme Court. In pushing to overturn a referendum passed by a large majority in California that enshrined the traditional definition of marriage into the state constitution, the opponents of Proposition 8 argue in essence that both the process and the policy chosen by the voters are entirely illegitimate. Voters used a direct-democracy mechanism that has existed in California for decades to amend the constitution no differently than other such propositions, and affirmed the definition of marriage that has existed during the entire history of this country. The challengers don’t like the outcome, and argue that nine justices should only accept as a legitimate result of that referendum a definition of marriage that until the last few years few would have accepted, and negate a legitimate outcome in an election. That’s an argument for an oligarchy or an autocracy, not a democracy.

Supporters of traditional marriage believe that the institution exists as an expression of society’s interest in children’s being raised by their biological fathers and mothers. You can say that this understanding is dated, given what has become of marriage the past 40 years. You can say that it is too pinched, given evolving mores. You can’t say it is inherently hateful.

If the Defense of Marriage Act is wrongheaded, the solution is simple and will be within reach in a few years if gay marriage continues to win converts — repeal it. And there is nothing wrong with Proposition 8 that California’s voters can’t fix by going to the polls again.

On the question of marriage itself, David Frum argues that it’s already a settled issue, thanks to the libertarian beliefs of the younger generation of voters. To that extent, I agree — which is why the Supreme Court should leave Proposition 8 in place and overturn the Ninth Circuit’s intervention. If Californians change their mind about the definition of marriage, they can hold another referendum or elect a legislature to amend the state constitution to reflect that preference in government policy.

Rather than organize that effort, however, the opponents of Prop 8 want justices to negate election results that they don’t like, based on an argument that fundamentally misunderstands the interest of the state in marriage recognition, which I explain in at The Week:

Supporters of same-sex marriage talk of “legalizing” gay marriages, but that’s not an accurate depiction of current law. No U.S. state, regardless of its definition, will prosecute same-sex couples who call themselves “married,” nor should they, outside of an intent to defraud — which is a crime regardless of the sexual circumstances. In fact, the government has a very limited legitimate interest in sexual or living arrangements. Especially after the Lawrence v. Texas case, the government has no role in regulating sexual activity with the exception of consanguinity (close blood relations), use of force and victimization, commercial trafficking of sexual favors, and exploitation of minors.

No one wants the government to dictate who may or may not share a bed, outside of those exceptional circumstances. Those who choose to cohabit in non-traditional relationships have ample options for formalizing their arrangements through the private contract process, which government enforces but does not sanction. That leaves adults free to choose whatever sexual arrangements they desire outside of the actual prohibitions that are objectively applied to everyone. That is actual freedom and equality.

Marriage, however, is a unique status even apart from religious concerns, which I’ll address later. Marriage licenses exist as government recognition of the unique procreative potential of heterosexual relationships. The government takes a special interest in that potential for good reason — because a failure of the procreators to act as proper guardians forces the government to build safety-net systems for children whose parents either cannot or will not provide for them. Marriage provides a structure for assigning responsibility for children potentially produced by heterosexual relations. Put simply, it fixes responsibility for paternity on the husband, regardless of who may have fathered the children during a marriage — a fact that more than a few cuckolded husbands have discovered during divorce settlements. That structure ensures that the state can enforce responsibility for the care of its most vulnerable citizens, even to the extent of criminal prosecution for neglect.

Frum argues that we should be more focused on the crisis in heterosexual marriage rather than the legalizing of same-sex marriage:

But while straight young Americans support marriage for gays, increasingly they opt against marriage for themselves. Nearly half of American children, 48%, are now born to unmarried women. Among women without college degrees, and of all races, unwed motherhood has become the norm.

This is the crisis of the American family. Whether same-sex marriage proceeds fast or slow, whether it extends to all 50 states or stops with the current nine plus the District of Columbia, the crisis will be the same.

Again, I don’t necessarily disagree, but the two are related:

In Western societies, including the U.S., marriage has always been a forward-looking institution aimed at protecting and nurturing the next generation of children, not a love license for the adults of the present.

We are turning a fundamental building block that focused on the next generation into a status symbol for adults in the present. Furthermore, we’ve spent the last several decades eliminating the social and economic benefits of heterosexual marriage and undermined the value of intact nuclear families, through both government policies (especially in safety-net programs and no-fault divorce) and popular culture. Should we be surprised that younger adults see less value in government-issued love licenses that look less attractive and provide more disincentives than incentives as time passes?

Furthermore, there is certainly a religious argument to be made for the traditional marriage definition, but we live in a pluralistic society where those doctrines aren’t determinative. However, a shift in the state’s definition of marriage will almost certainly result not in more tolerance, but in active persecution of religious organizations that won’t support a definition that includes same-sex couples:

For example, a baker in Oregon faces potential criminal charges for refusing to provide a wedding cake for a same-sex couple because of his religious beliefs. What happens when churches refuse to perform such ceremonies for the same reason?

Most people scoff at this question, but religions have partnered with the state on marriages in a way that bakers have not. Priests, ministers, rabbis, and imams act in place of the state when officiating at wedding ceremonies, and states that legalize same-sex marriage are eventually going to be forced by lawsuits to address that partnership, probably sooner rather than later. In similar partnerships, that has resulted in pushing churches out of business.

Massachusetts demanded that Catholic adoption agencies, which handle private adoption in an arrangement that is less of a stand-in for government than in officiating at weddings, to place children with same-sex couples. The Boston diocese opted to drop its adoption services rather than fight the state in court. Most recently, the federal government imposed a requirement on religious organizations and individual business owners to provide and/or facilitate free birth control and sterilization services even though it conflicts with their beliefs and doctrine. Part of the argument put forward in favor of this policy is that these religious organizations — especially Catholic health care providers — partner with the government to deliver those services, and therefore have no right to stand on religious-liberty grounds. It’s not difficult to see the writing on the wall when it comes to the ability of churches to perform a core sacrament in any meaningful sense once the government changes the definition of marriage.

And again from Lowry:

By seeking a shortcut in the courts, supporters of gay marriage want to end debate through judicial fiat. In an amicus brief in the case, the Becket Fund for Religious Liberty points out the consequences if traditional marriage is deemed irrational. Religious people and groups objecting to same-sex marriage will “face a wave of private civil litigation under anti-discrimination laws never intended for that purpose,” and they will be “penalized by state and local governments.”

In other words, supporters of the exotic-sounding practice of “opposite-sex marriage” will be marginalized forevermore.

Under these circumstances, with the state shirking its interest in protecting the next generation by limiting specific recognition to relationships with at least the theoretical potential for procreation, we should demand that government get out of the marriage business altogether. I’d prefer we stick to the traditional definition, or at least to the democratic processes that should be used to determine government policy, but I’m pessimistic that this Supreme Court will provide that outcome.

The federal government should have no opinion one way or another on the issue of marriage. Marriage is an individual issue, and the feds should not concern itself with the affairs of individual citizens. Marriage is an issue to be settled at the level of the states, at the highest.

Ed, right now there are five — count ’em, five — posts about “gay marriage” just “above the fold” on the home page, plus many more down below the fold. Enough is enough, already. There ARE other things in the news to talk about.

The federal government should have no opinion one way or another on the issue of marriage. Marriage is an individual issue, and the feds should not concern itself with the affairs of individual citizens. Marriage is an issue to be settled at the level of the states, at the highest.

tdarrington on March 26, 2013 at 2:11 PM

Here’s my honest question. When the Federal government starts giving tax breaks or other rights around marriage, does that not mean that the Federal government has given an opinion on marriage?

My biggest issue with gay marriage has always been that a man and woman are capable of receiving benefits that 2 men or women can’t. I just struggle to see the constitutional basis for that being ok, if someone can point to it I would greatly appreciate it (no sarcasm intended).

Under these circumstances, with the state shirking its interest in protecting the next generation by limiting specific recognition to relationships with at least the theoretical potential for procreation, we should demand that government get out of the marriage business altogether.

It’s a nice thought and one I’m inclined to agree with. Unfortunately, privatizing marriage will not get the government out of the marriage business altogether. It will make government intrusion into families even worse.

Privatization of marriage wouldn’t really make any difference for childless couples, but for those married with children it would increase the government’s role tremendously.

Your conservative could ease up a little, insofar as the nuclear family isn’t the only good way to live. But the perpetuation of society is a must, and the declining population of the western world should concern us all.

In Western societies, including the U.S., marriage has always been a forward-looking institution aimed at protecting and nurturing the next generation of children, not a love license for the adults of the present.

Here’s my honest question. When the Federal government starts giving tax breaks or other rights around marriage, does that not mean that the Federal government has given an opinion on marriage?

Just because they do, doesn’t mean they should.

Furthermore, we’ve spent the last several decades eliminating the social and economic benefits of heterosexual marriage and undermined the value of intact nuclear families, through both government policies (especially in safety-net programs and no-fault divorce) and popular culture. Should we be surprised that younger adults see less value in government-issued love licenses that look less attractive and provide more disincentives than incentives as time passes?

When an institution as large as the federal govt begins to meddle in the lives of individuals, it produces unintended consequences everywhere. Instead of there being a firewall for bad policy at the state border, the entire country becomes corrupted, and the solution becomes lost in myriad of bad policy.

Your conservative could ease up a little, insofar as the nuclear family isn’t the only good way to live. But the perpetuation of society is a must, and the declining population of the western world should concern us all.

alwaysfiredup on March 26, 2013 at 2:28 PM

The nuclear family might not be the “only good way to live.” But it’s the only good way to perpetuate society and prevent a declining population.

When an institution as large as the federal govt begins to meddle in the lives of individuals, it produces unintended consequences everywhere. Instead of there being a firewall for bad policy at the state border, the entire country becomes corrupted, and the solution becomes lost in myriad of bad policy.

tdarrington on March 26, 2013 at 2:30 PM

Good point.

It would have been great if our nation’s founders had crafted a document that specifically detailed the roles and responsibilities of the Federal government and then left the rest to the individual states…

Considering, regardless of their own internal fabricated stats, homosexuals only consist of about 1% of the population. I do not begrudge them any right the rest of us have. However, I suspect, Mimzey, that threads considering homosexual specific subjects, do comprise more than 1% of the posts at HA. I think you are being over represented. You don’t want equality. You want superior authority.

Ed, you and I are on the same page in terms of the decision we hope fore. Marriage is never ONCE mentioned in the Constitution, the 10th amendment applies and the 9th should be overturned on that. However, I would ALSO add the reciprocity should NOT be mandatory, unless a state chooses to make it so; A state that does not permit gay marriage should NOT be required to recognize such marriages elsewhere.

All the legal issues of gays can be addressed in extension of various versions of unions in the legislative realm. But marriage licenses- like drivers licenses- are state business.

i’m GAY. did you all see that? I’M GAY!!!!!!!!!!!!!!!!!!!!so yeah, I’M GAY, and i’m more worried if 7-11 will make IRON MAN 3 slurpee cups this summer than i am over this bullsh-t! did you know that there were zero 7-11 slurpee cups last summer for the Avengers/Batman movies???? UNBELIEVEABLE. OH……………AND I’M GAY!

I honestly don’t care, and even approve of, gay couples who want to establish a stable, moral union. But in the old days, the ’60s and ’70s, we were taught by feminism and liberal critical theory in college that marriage was the threshold institution of control supported by the State to keep women down and men up. Gay people said “we’re different, we are free,” in effect. It was Oppression!!

When did that change? It changed when the Dems needed an issue, just like they exaggerated global warming to win elections.

And the reason none of the activists has demanded a church wedding in a resistant church is it would hurt the movement’s popularity. They will demand it if the SCOTUS affirms gay marriage.

I now learn that Obamacare applications will double as voter registration applications–presumably, no proof of citizenship required.

If I wouldn’t be suffering in the future as well, the schaudenfraude I’d experience when I see awesomely awesome moderates screaming about their high taxes going to pay for the innumerable benefits extended to their lowlife layabout neighbors would be delicious. By then, it’ll be too late.

I think conservatives need to pull out their simple math charts and start convincing all but the hard left that varying levels of income redistribution and wealth confiscation will never cover the welfare state that Democrats want.

Moderates can pat themselves on the back all they want for voting for the party that supports marriage for the country’s new political baby seals. But that same party is spending us into oblivion.

Under these circumstances, with the state shirking its interest in protecting the next generation by limiting specific recognition to relationships with at least the theoretical potential for procreation, we should demand that government get out of the marriage business altogether.

Ed, if the State’s primary interest in marriage is in protecting the next generation, then you should be arguing for State recognition of all couples who are raising children, whether the parents are straight or gay.

And the reason none of the activists has demanded a church wedding in a resistant church is it would hurt the movement’s popularity. They will demand it if the SCOTUS affirms gay marriage.

PattyJ on March 26, 2013 at 2:44 PM

But my senator (Portman) assured readers of his public change of heart that he’d never want to see churches have to perform SSM ceremonies. I’m betting that he retires before he stands by that statement.

BTW: his son penned something for Yale’s newspaper, which the local paper carried today. This past summer, the son admitted to his “best” friend that he was gay. The “best” friend turned to him and said, “So am I.” WTF.

the imposition of judicial fiat once again to inevitably expand the power of the state is very troubling.

The Power of the State as the final arbiter of all matters legal and civil, with elimination of religious judgmental morality, ultimately disposing of antiquated Christian influence in such matters as the overall and final goal of the Left. Our existence should be exclusively overseen by the State to which we should vow our exclusive allegiance.

The biggest issue here isn’t about SSM (you can argue the merits ’til the cows come home), but whether the court is going to over rule a free and fair election.

If this SCOTUS or any other court tries to overturn an election, they better have a slam-dunk case as to why.

Tater Salad on March 26, 2013 at 2:57 PM

I think the other post is right and they will punt. The four liberals will agree with the 9th. Two will find no standing and two will vote that Prop 8 was constitutional. Which will split in favor of the 9th invalidating Prop 8. It would completely invalidate all state bans, but it will sure be used as precedents to start the process. If they do punt, SCOTUS will have to deal with it another day.

BTW: his son penned something for Yale’s newspaper, which the local paper carried today. This past summer, the son admitted to his “best” friend that he was gay. The “best” friend turned to him and said, “So am I.” WTF.

Ed, if the State’s primary interest in marriage is in protecting the next generation, then you should be arguing for State recognition of all couples who are raising children, whether the parents are straight or gay.

cam2 on March 26, 2013 at 2:53 PM

3 parents is probably better than 2 don’t you think? We should recognize them too.

Ed, if the State’s primary interest in marriage is in protecting the next generation, then you should be arguing for State recognition of all couples who are raising children, whether the parents are straight or gay.

cam2 on March 26, 2013 at 2:53 PM

But same sex couples do not protect the children as well as two biological parent homes.

I have no opinion on SSM, at least none that I’m going to share here, but sometimes the voters get things wrong. Like when they vote to ban a legal activity from taking place in someones private business such as smoking. Even though they vote to do so it does not make it right. Mob rule even when it takes place in the voting booth is never ok.

But same sex couples do not protect the children as well as two biological parent homes.

astonerii on March 26, 2013 at 3:10 PM

Not true. Per the American Academy of Pediatrics:

Extensive data available from more than 30 years of research reveal that children raised by gay and lesbian parents have demonstrated resilience with regard to social, psychological, and sexual health despite economic and legal disparities and social stigma. Many studies have demonstrated that children’s well-being is affected much more by their relationships with their parents, their parents’ sense of competence and security, and the presence of social and economic support for the family than by the gender or the sexual orientation of their parents. Lack of opportunity for same-gender couples to marry adds to families’ stress, which affects the health and welfare of all household members. Because marriage strengthens families and, in so doing, benefits children’s development, children should not be deprived of the opportunity for their parents to be married.

Not again. Please, the American Academy of Pediatrics is a sick organization that has endorsed Female Genital Mutilation and NAMBLA. The fact that you post their biased nastiness as if they have some kind of Absolute Moral Authority because the word “pediatric” is in their title shows how absurd your argument is.

Should we be surprised that younger adults see less value in government-issued love licenses that look less attractive and provide more disincentives than incentives as time passes?

What??? Love licenses? That’s not what marriage is.

PS: Can you please explain how the contract of marriage can be recognized in one state but not another? Can you guarantee that heterosexuals who move from one state to another won’t be required to get a “love license” in every state they reside in? How can the state “get out of the marriage business” altogether? What do we do then?

Extensive data available from more than 30 years of research reveal that children raised by gay and lesbian parents have demonstrated resilience with regard to social, psychological, and sexual health despite economic and legal disparities and social stigma. Many studies have demonstrated that children’s well-being is affected much more by their relationships with their parents, their parents’ sense of competence and security, and the presence of social and economic support for the family than by the gender or the sexual orientation of their parents. Lack of opportunity for same-gender couples to marry adds to families’ stress, which affects the health and welfare of all household members. Because marriage strengthens families and, in so doing, benefits children’s development, children should not be deprived of the opportunity for their parents to be married.

” The New Family Structures Study (NESS), published by Dr. Mark Regnerus, Associate Professor at the University of Texas, compared thousands of young adults (ages 18-39) who were raised in different types of family arrangements.

Those who knew that their mothers had had a lesbian relationship fared significantly worse on measures of educational attainment and household income, reported more depression, used marijuana more, more often reported forced sexual encounters, felt less close to their biological mother, felt less safe and secure in their family of origin, had more often pled guilty to a minor criminal offense and were more likely to be on public assistance.

Those who knew their fathers had had a gay relationship were more likely to have been arrested, to have thought recently about suicide, to feel depressed, to report sexually transmitted diseases and to have experienced forced sex.

Twenty-three percent of young adults who knew their mother to have had a gay relationship reported being forced to have sexual contact with a parent or adult caregiver, while only 2 percent of intact families with a mother and father reported such contact. For female young adults, that figure leapt to 31 percent (while only 3 percent of young women from intact heterosexual families reported this).

n saying that the children of parents who were known to have engaged in homosexual relationships reported these increased rates of suffering, it is important to note that the rates were higher for these children (now young adults) than for children in intact families with two biological parents, children whose parents divorced late in life, children who were raised with a step-parent in the home, children raised by a single parent and children adopted by strangers…

It would seem to be important to know whether children of gay parents run into less trouble if they were the products of artificial insemination vs. the product of a prior heterosexual relationship. Where the fallout of certain childrearing circumstances seems to be more depression, suicide, lawlessness, drug use, sexually transmitted disease and economic hardship, we ought not scare off the scientific community from doing what it does—research and reporting of the facts.

In this regard, I should note something important: I hesitated to write about this topic in an opinion piece. I didn’t hesitate because I think the topic frivolous. I didn’t hesitate because I think of Social Science Research as a meaningless journal (because it is anything but that). I didn’t hesitate because funding for the NESS comes partly from conservative groups (because data are data, unless they can be refuted on objective grounds, and this study is painstaking, in many regards). I hesitated because I worried about getting more of the threats and hate mail (by post and e-mail) I receive whenever I even mention the seemingly unspeakable issue of how social forces related to sexual orientation and gender identity might impact well being in children.

Yet, yielding to that worry would mean that being bullied way back when I was a school kid might have left me timid, and I just can’t abide that. When I see a path of enquiry that might yield some bit of truth, I want to try to be the person who takes it, no matter how treacherous. And, so, it is with this commentary, now in your good hands, to take or leave, to debate, to discuss—as Tennyson wrote, “to strive, to seek, to find…”

Dr. Keith Ablow is a psychiatrist and member of the Fox News Medical A-Team.

Marriage licenses exist as government recognition of the unique procreative potential of heterosexual relationships.

History disagrees with you. Marriage licenses were created as a method for the bride and groom to marry over objections. Common law marriage was a norm. If you stated you were “married”, then you were.

But for the marriage to have the blessing of the church the bride and groom had this tedious task of dealing with objections from the community.

Marriage licenses were a way for a bride and groom to “buy” their marriage and bypass the task of community objections. With a license they didn’t have to worry about anyone objecting.

It was a money making scheme by the church that got passed on here in New World. But instead of the church overseeing it, it went to the governors of the territories because they were the ones issuing land grants.

Ed, if the State’s primary interest in marriage is in protecting the next generation, then you should be arguing for State recognition of all couples who are raising children, whether the parents are straight or gay.

cam2 on March 26, 2013 at 2:53 PM

Why are we restricting the “right” to couples then? How about the polygamists who have multiple wives and litters of children. Many of whom, are on the state dole since the non-legal “wives” are legally single parents and then all kinds of entitlements and goodies kick in.

Ed, I wish I could find it now, but the other day on Catholic Answers Live, they mentioned an atheist’s argument for the traditional definition of marriage, but they didn’t go into it. I did find a link for an appearance last month by Dr. Greg Popcak on CAL, talking about the secular case for traditional marriage:

Yes. When the Supreme Court denied cert in Baker v Nelson in 1971 relative to the refusal of Minnesota to issue a marriage licence to two men and said that marriage was a state issue, that act didn’t kill the movements to end sodomy laws and legitimise same-sex marriage (SSM). A refusal by the Court to recognise that SSM is a fundamental right will likewise not kill the SSM movement, which has been making great strides at the state level in the last 2 years. Prop 8 would be defeated today at the ballot box.

In 1883, the Supreme Court affirmed that Alabama’s anti-miscegenation statute was constitutional and interracial marriage was strictly prohibited. Eighty-four years later, Mildred Loving, a black woman, and Richard Loving, a white man, got married in Washington, DC, and moved to Virginia where they were promptly arrested, prosecuted, convicted, and sentenced to a year in jail. Their case Loving v Virginia, 388 U.S. 1 (1967), not only blew the disgusting piece of shyt, Pace v Alabama, 106 U.S. 583 (1883), to KKK Hell, it also established that marriage was a fundamental right.

In 1986, the Supreme Court in Bowers v Hardwick, 478 U.S. 186, upheld criminal sodomy laws. Seventeen years later, in Lawrence v Texas, 539 U.S. 558 (2003), it struck ALL sodomy laws between consenting adults down…and Scalia wrote in his dissent that the case made SSM “inevitable.”

As I said earlier, the Court denied cert – basically, talk to the hand and don’t let the door hit you on the way out – in 1971 on an issue involving SSM. Today, it listened to oral arguments in Hollingsworth v Perry. Tomorrow, it will listen to oral arguments in United States v Windsor.

In listening to the arguments today, I heard a lot of Ginsbergism in the questions today, i.e., Justice Ginsberg has said that she thought that Roe v Wade was about population control, not really “choice.” She has also said that she believed the case was an unforced error made by the Court and, quite possibly, one of its worst. Abortion laws were becoming more lax across the country – Ronald Reagan had legalised abortion in California in 1967. Instead of letting the people come to some accommodation and decision on their own, 9 unelected, unaccountable men with lifetime positions issued a one-size-fits-all edict and split the country in half to this day. I think that many on the Court are leery about repeating this, especially on an issue as emotional and charged as SSM and in the wake of the Obamacare decision.

For years, I have predicted that Prop 8 and the DOMA case would be the vehicles that the Court would use to overturn all SSM bans with Justice Kennedy writing for the 5/4 (maybe 6/3) majority on the basis on his strong libertarian-bent and his two majority opinions in Romer v Evans, 517 U.S. 620 (1996), and Lawrence v Texas, 539 U.S. 558 (2003), but then, a few weeks ago, I seemed to notice a tell. He was out in California making a speech when he said something that was not noticed by many, but was very profound considering what was on the docket:

“A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say. And I think it’s of tremendous importance for our political system to show the rest of the world – and we have to show ourselves first – that democracy works because we can reach agreement on a principle basis.”

– Justice Anthony Kennedy, 7 March 2013

I can see him possibly being the 5th vote to strike down DOMA because marriage is a state issue, but I don’t think he is going to be the 5th vote to strike down all SSM bans and I also see him going as narrowly as possible.

I thought that Roberts might be a 5th, but I doubt it now. He said today:

“If you tell a child that somebody has to be their friend, I suppose you can force the child to say ‘this is my friend,’ but it changes the definition of what it means to be a friend. And that’s, it seems to me, what opponents of Proposition 8 are saying here. All you’re interested in is the label, and you insist on changing the definition of the label.”

— Chief Justice John Roberts

Of course, there is ONE VERY BIG CAVEAT with CJ Roberts: He DOES have a habit of changing definition at the last minute. A “penalty” became a “tax.” So, a “friend” could become a “spouse.” In the end, who knows?

Another interesting person was Sotomayor. Many keep saying “people should be able to marry whomever they love.” She didn’t seem persuaded by that argument, not because she doesn’t “believe in love,” but sees it as a slippery slope. If a man and an underage boy, who is really mature even though he is unable to purchase a car because he is as yet the age of majority to enter a contract, are really, really, really in love, should they be allowed to marry? If a happily married, heterosexual couple fall in love with a man, should they be able to marry him? Can a devout Muslim marry 3 wives, if they all really, really, really love one another? If members of some breakaway Mormon sect all really, really, really love each other, should they all be permitted to marry each other?

Don’t get me wrong about Sotomayor: She will vote to overturn all SSM bans, but I think she is giving you some advice. Be careful with the “No matter who you love” stuff. Obama uses that line a lot. I realise that most are referring to SSM, but an acquaintance of mine, who is a nationally-recognised constitutional law expert and professor is watching these cases closely because he represents the sister wives people out in Utah or Nevada wherever the weirdos are located. He’s going in for polygamy as soon as SSM is held legal.

Rather than organize that effort, however, the opponents of Prop 8 want justices to negate election results that they don’t like, based on an argument that fundamentally misunderstands the interest of the state in marriage recognition, which I explain in at The Week:

I don’t think it’s a fundamental misunderstanding. I think they don’t care. They want what they want, and they’ve rationalized why it’s right.

There is, however, a colossal failure to understand on the part of opponents who think you can compromise by finding some magical libertarian solution. Removing marriage recognition from every law on the books will not be sufficient. The activists are not driven by the desire to get favorable tax treatment, and it would be foolish to think they would stop just because you removed that little bit of incentive.